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Commentary by Wallace Hoggatt
Special to the Herald/Review
Earlier this year I was talking to my wife about common things lawyers and self-represented litigants do to hurt their chances for success in court. I was letting off some steam — yes, judges do that, too, just like everybody else — about the problems people cause themselves, problems that can easily be avoided. I told my wife I should develop a seminar, call it “How to stop sabotaging your own courtroom performance,” and take it on the road after I retire from the bench.
A few weeks later, the two of us were watching a newsmagazine featuring an interview with a U.S. Supreme Court justice who had just co-authored a book about how to persuade judges.
“Well, it looks like he beat you to it,” my wife told me.
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I wasn’t so sure.
Later, I bought the book and found that although the justice may have stolen some of my thunder, his book doesn’t address all or even many of the problems I see.
That’s because the Supreme Court is almost exclusively an appellate court. Appellate courts don’t conduct trials. They don’t decide what the facts are. They don’t hear witnesses. They don’t send anyone to prison or place anyone on probation. Appellate judges read trial court records and decide if trial judges committed legal error. That’s the task of an appellate court, whether it is the U.S. Supreme Court making a lofty pronouncement about the Constitution or a state intermediate court of appeals determining the meaning of a local rule of practice.
When the Supreme Court justice talks about persuading judges, the “judges” he refers to are almost always appellate judges. He occasionally says something about trial judges like me, but only insofar as our job might overlap with that of our colleagues on an appellate court. His book advises lawyers to organize their thoughts before committing them to paper; to write clearly; to write in English (no obscure Latin, please); and, during argument, to answer the judges’ questions directly. And so forth. All good advice, and none of it new, as the justice and his co-author candidly acknowledge.
The kind of advice that I would give isn’t particularly new, either, but it would relate to the particular demands of practicing in trial courts. Trial courts, for example, often hear pretrial motions about a variety of topics, such as disputes about what is called discovery — procedures to obtain information from the other side in a lawsuit — or about the evidence that might be allowed at trial or about a whole host of other things. Just as the subject matter of pretrial motions will vary greatly, so will the range of allowable court orders. A motion alleging a rules violation might (if the court agrees the rules were violated) justify keeping evidence out of the trial, or continuing the trial, or making the offender pay a monetary sanction, or something else.
It would be helpful for a party who files a motion to tell the judge what relief the party is asking for. Good lawyers (and even a few self-represented litigants) do this, but it’s surprising how frequently some people don’t seem to have any idea what they are asking the court to do. Years ago, I heard a lawyer argue a pretrial motion, and he went on and on about how the other side had done his client wrong. I agreed with much of what he said, but nothing in his written motion told me what he wanted the court to do about the violations. I asked him what he wanted. He was startled, but after a brief pause he answered loudly, “I want justice!”
His answer was delivered with great fervor, but it was of no use at all. A court order must be specific. At the very least, someone should be able to tell when an order is violated. If a judge signs an order saying, “Person X is hereby granted justice,” without more, how can anyone tell what Person X is supposed to get? How could the sheriff ever enforce such an order?
Here’s one way you can stop sabotaging your courtroom performance: In any motion you file, clearly state what order you’re asking for, with sufficient precision that if the judge grants your motion, everyone can tell what is supposed to happen afterward. Better yet, along with your motion, submit a form of order that you would like the judge to sign.
And while we’re on the subject of motions: If you want the judge to see what you are filing, call it a “motion” and not a “notice.” “Notices” are almost never routed to the judge for action. Many a litigant has filed something mislabeled a “Notice of Filing,” even though it asks for judicial action. The clerk of the court will do exactly what the name of the document seems to request: It will be put in the file.
Trial courts frequently have to set trial dates in the face of conflicting demands resulting from the schedules of expert witnesses, the availability of the lawyers, and the constraints of speedy trial deadlines. It’s amazing how often people come into court with little or no idea of how many days are needed for trial, when their witnesses will be ready, or even when they themselves will be available for trial. Here’s a thought: Before you appear in court for a trial setting — especially for a case you believe will actually go to trial — figure out how much time you need for the trial and find out when your witnesses will be available. And when you show up to court, bring your calendar.
I’m just getting started, but newspaper space is at a premium and I’m over my word limit. Maybe I’ll put together that seminar, after all.
WALLACE R. HOGGATT has been a judge of the Superior Court of Arizona since 1996. He serves as presiding judge for Cochise County. Look for “Inside the Courts” the last Sunday of each month.
old man and his dog wrote on Sep 15, 2008 8:42 PM: